Bail Applications Nos. 4537 of 2019 and 3983 of 2019 (Thomas Philip; Anoop; Govind Krishna v. State of Kerala)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 02ND DAY OF SEPTEMBER 2019 / 11TH BHADRA, 1941** **Bail Appl..No.4537 OF 2019** **CRIME NO.287/2019 OF Balussery Police Station , Kozhikode** ## **PETITIONER/S:** **THOMAS PHILIP, AGED 45 YEARS S/O PHILIP, CHERUPULICHIYIL, RANNI, PATHANAMTHITTA.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)** ## **RESPONDENT/S:** **1 STATE OF KEALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 (CRIME NO.287/2019 OF BALUSSERY POLICE STATION, KOZHIKODE RURAL). 2 STATION HOUSE OFFICER BALUSSERY POLICE STATION, KOZHIKODE DISTRICT673 612 (CRIME NO.287/2019 OF BALUSSERY POLICE STATION, KOZHIKODE RURAL). 3 BALUSSERY BLOCK PANCHAYATH BALUSSERY, KOZHIKODE REPRESENTED BY ITS SECRETARY – 673 612 (IMPLEADED AS PER ORDER DATED 2.9.2019 IN CRL.M.A.NO.1/2019)** ::2:: B.A.Nos.4537 & 3983 Of 2019 **4 KOTTUR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY KOTTUR, KOZHIKODE DISTRICT** **(IMPLEADED AS PER ORDER DATED 2.9.2019 IN CRL.M.A.NO.3/2019)** **R1 & R2 BY GOVERNMENT PLEADER R3 BY ADV. M.S.AMAL DHARSAN R4 BY ADV. K.N.ABHILASH R4 BY ADV. SRI.SUNIL NAIR PALAKKAT** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.09.2019, ALONG WITH Bail Appl..3983/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ::3:: B.A.Nos.4537 & 3983 Of 2019 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 02ND DAY OF SEPTEMBER 2019 / 11TH BHADRA, 1941** **Bail Appl..No.3983 OF 2019** **CRIME NO.287/2019 OF Balussery Police Station , Kozhikode** ## **PETITIONER/S:** - **1 ANOOP, AGED 29 YEARS, S/O. VISALAKSHI, MELEKAINEARA, PUNASSERY, KAKKUR PANCHAYATH, KOZHIKODE.** - **2 GOVIND KRISHNA, AGED 27 YEARS S/O. RAMAKRISHNAN, 2/430, KALPAKASSETY, MOOLAD.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. (CRIME NO. 287/2019 OF BALUSSERY POLICE STATION , KOZHIKODE RURAL) 2 STATION HOUSE OFFICER BALUSSERY POLICE STATION, KOZHIKODE DISTRICT - 673 612 (CRIME NO.287/2019 OF BALUSSERY POLICE STATION, KOZHIKODE RURAL.** ::4:: B.A.Nos.4537 & 3983 Of 2019 - **3 ADDL. R3 KOTTUR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, KOTTUR, KOZHIKODE-673614.** **IS IMPLEADED AS ADDITIONAL R3 AS PER ORDER DATED 11.6.2019 IN CRL.MA NO.1/2019.** - **4 ADDL.R4. BALUSSERY BLOCK PANCHAYATH BALUSSERY, KOZHIKODE REPRESENTED BY ITS SECRETARY.** **(IMPLEADED AS PER ORDER DATED 2.9.2019 IN CRL.M.A.NO.2/2019).** **R3 BY ADV. K.N.ABHILASH R3 BY ADV. SRI.SUNIL NAIR PALAKKAT R4 BY ADV. M.S.AMAL DHARSAN** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.09.2019, ALONG WITH Bail Appl..4537/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ::5:: B.A.Nos.4537 & 3983 Of 2019 ## **ALEXANDER THOMAS, J** . ----------------------------B.A.Nos.4537 & 3983 Of 2019 --------------------------------Dated this the 2[nd] day of September, 2019. ## **O R D E R** The sole petitioner in B.A.No.4537/2019 and the 2 petitioners in B.A.No.3983/2019 are arrayed as accused Nos.1 to 3 among the 3 accused in the instant Crime No.287/2019 of Balussery Police Station, Kozhikode District, which has been registered for offences punishable under Sec.3(2)(a) of the Prevention of Damage to Public Property Act, 1984, on the basis of the FI statement given by the defacto complainant on 17.5.2019 at about 2:15 p.m. in respect of the incidents which happened for the period from 20.7.2018 to 17.10.2018. It appears that the accused No.1 is the Managing Director of the company concerned called “M/s.Delta Rock Products”, which is engaged in quarrying activities and accused Nos.2 & 3 are the site managers of the said company concerned and that the company of accused No.1 had purchased the subject property from the LRs of the deceased previous owner. Further that the previous owner had relinquished the small extent of 0.757 cents of land from the said entire subject ::6:: B.A.Nos.4537 & 3983 Of 2019 property in favour of the Governmental authorities and the Governmental authorities has entrusted the said land to the respondent-Balussery Block Panchayat for construction /commissioning of water project and that the respondentBalussery Block Panchayat had undertaken the construction activity in that regard in the small extent of land and water project structure was completed and commissioned in the year 2006 and they had later entrusted the management of the project in relation to the water tank to the respondent-Kottur Grama Panchayat. Further it appears from the submissions on both sides that the abovesaid relinquished extent of land never been mutated in the name of the Government or Panchayat and it continued to remain in the name of previous owner. Further it also appears that after the death of previous owner, his legal heirs had sold the entire extent of property including the 0.757 cents of land to the company/establishment of accused No.1, in which he is carrying out quarrying activity. The complaint of the de facto complainant is that 4 months prior to the date of submission of the FIS dated 20.10.2018, accused No.1 with the assistance of accused Nos.2 & 3 had demolished the water tank structure along with the pipes and ::7:: ## B.A.Nos.4537 & 3983 Of 2019 deposited the debris to the nearby well of the water project and later they have removed the debris to a distant place and thereby the accused persons have committed the abovesaid offences. 2. Sri.S.Rajeev, learned counsel for the petitioners would point out that the allegations are false and baseless and evidently there is a long and unexplained delay of 4 months in lodging the FIR and registration of the Crime. Accused No.1 is the absolute owner of the subject property and the allegation that the previous owner has relinquished the property in favour of the Governmental authorities is absolutely wrong and the documents produced by him would show that the entire subject property including 0.757 cents is not a Government land as per the revenue records and further that the entire property including 0.757 cents of land has been duly conveyed by the legal heirs of previous owner to accused No.1, who is the owner of the land and none of the accused have demolished any water tank structure and that water tank was never in existence at the time when the property was conveyed to accused No.1. The fact that the said 0.757 cents of land is not a Government land as per the Revenue records are referred to in Anx-IV produced along with Crl.M.A.No.2/2019 in ::8:: B.A.Nos.4537 & 3983 Of 2019 B.A.No.4537/2019. Further that Anx-II would clearly show that even the respondent-Kottur Grama Panchayat has clearly stated that the so called project has never been entrusted to them and not even a scrap of paper has been produced by the Prosecutor even to remotely suggest that the subject water tank was in existence in the property at the time when accused No.1 had purchased the property as per Anx-R4(d) registered sale deed dated 3.8.2016 produced by R-4 Balussery Block Panchayat in B.A.No.3983/2019. 3. The respondents, more particularly, Sri.Saigi Jacob Palatty, the learned Prosecutor appearing for the investigating agency as well as Sri.Amal Dharshan, learned Standing Counsel for the respondent-Balussery Block Panchayat would point out that it may be true that the relinquished land in favour of the Government may not have been duly mutated or entered into by the revenue authorities by mutation of the records but that the records of the respondent-Balussery Block Panchayat would clearly show that the water project structure was sanctioned and then completed and commissioned by the respondentBalussery Block Panchayat as early as in the year 2006. Even now, the well constructed and the pumping station constructed for the ::9:: B.A.Nos.4537 & 3983 Of 2019 water tank structure is still remaining in the adjacent property, which is not covered by the subject property and the well and pumping structure which are in existence today will clearly indicate the fact of existence of water tank for the supply of water to various places of the respondent-Balussery Block Panchayat. Further that merely because the respondent-Kottur Grama Panchayat did not show the responsibility in taking over the management of the water structure does not mean that the water structure was not in existence. Further the learned Standing Counsel for the respondent-Balussery Block Panchayat has made available the relevant files of the Block Panchayat to show various orders for sanction of the water tank project and subsequent commissioning and completion of the water tank structure in the year 2006. Further the respondents would point out that the quantum of damages assessed by the Assistant Executive Engineer of the Local Self Government Department as evident from AnxR4(d) produced by the 4[th] respondent in B.A.No.4537/2019 wherein the value of the demolished structure has been assessed at Rs.5,93,200/-. The learned Prosecutor would submit on the basis of instructions of the investigating agency that in case this Court is ::10:: B.A.Nos.4537 & 3983 Of 2019 so inclined to grant anticipatory bail to the petitioners, then it should be stipulated as a condition thereof that the petitioners shall deposit the value of the loss on account of the destruction of the water tank structure amounting to Rs.5,93,200/- before the jurisdictional Magistrate court concerned. In that regard the learned counsel for the respondents would point out the decision of the Apex Court in _**Kodungallur Film Society & anr. v. Union of India & ors**_ ., reported in (2018) 10 SCC 713 = 2018 (5) KHC 297 (SC), wherein it has been held that even in case where a person arrested for either committing or initiating, promoting, instigating or in any way causing to occur any act of violence which results in loss of life or damage to property may be granted conditional bail upon depositing the quantified loss caused due to such violence or furnishing security for such quantified loss and in case of more than one person involved in such act of violence, each one of them shall be jointly, severally and vicariously liable to pay the quantified loss. [see para 20.13 of the SCC report and para 16C(c) of the KHC report]. The learned Prosecutor has also brought to the notice of this Court's attention about the recently enacted Kerala State Ordinance No.5 of 2019 of the Kerala Prevention of Damage ::11:: B.A.Nos.4537 & 3983 Of 2019 to Private Property and Payment of Compensation ordinance, 2019, whereby Sec.6 of the said Ordinance has stipulated that the court can insist that security in the form of bank guarantee has to be furnished or cash is deposited in court which shall not be less then one half the value of the property destroyed or damaged in case of crimes involving damage to private property. Further that the Prevention of Damage to Public Property Act is a Central enactment and though it does not contain explicit provisions in that regard, this Court can follow the guidelines issued by the Apex Court in _**Kodungallur Film Society's**_ case (supra). 4. The learned prosecutor has also pointed out that in the course of the investigation, the Police has taken statement from one of the eye witnesses that he had witnessed the destruction of the water tank structure on the day in question on 23.3.2018 under the supervision of accused Nos.2 & 3. The learned Standing Counsel for the respondent-Balussery Block Panchayat has also submitted that Anx-R-4(e) (produced in Crl.M.A.No.4/2019 in B.A.No.4537/2019) will show that the satellite images taken on 4.3.2018 and 10.3.2018 would clearly go to show that the water tank structure was in existence even on those days. ::12:: B.A.Nos.4537 & 3983 Of 2019 5. After hearing both sides and on a careful evaluation of the facts and circumstances, this Court is not prepared to countenance the plea of the petitioners that no water tank structure was in existence at the time of conveyance of the property as per the aforesaid sale deed dated 3.8.2016. Anx-R-4(a) produced in B.A.No.4537/2019 is the relinquishment made by the previous owner in favour of the Governmental authorities concerned and original of the said relevant document forms part of the file maintained by the respondent-Balussery Block Panchayat and it is seen that the document was counter signed by the then Village Officer of the Kottur Grama Panchayat. The case of the prosecution that merely because relinquishment has not been reflected in the Governmental revenue records will not take away the ownership rights of the Government over the property coming to 0.757 cents or the water tank structure or that it will confer any rights to the petitioner appears to be quite reasonably plausible at this stage. The said observation made by this Court is only for the consideration of the present anticipatory bail application and needless to say, nothing in this order will influence or trammel the civil or criminal proceedings in the subject matter. Prima facie, the ::13:: B.A.Nos.4537 & 3983 Of 2019 prosecution has also taken the statement of one of the eye witnesses, who has stated about the alleged incidents of demolition of water tank structure. So also, the nearby well, pump house in tact which form part of the water tank structure would also prima facie show that the water tank structure was earlier in existence. Accordingly, the abovesaid arguments raised by the petitioner will stand overruled only for the purpose of consideration of the anticipatory bail application. True, that the Prevention of Damage to Public Property Act, 1984, which is a Central Act, does not explicitly provides for any provision for compelling cash deposit or bank guarantee for the quantum of loss as a condition for grant of bail. But the wholesome principles laid down by the Apex Court in _**Kodungallur Film Society's**_ case (supra) would apply in a case like this and this Court has followed the said guidelines in the cases as in _**Shanif K. & anr. v. State of Kerala & anr**_ ., reported in 2018 (5) KHC 272, wherein it has been directed that a condition should be imposed to deposit a portion of the quantum of loss caused due to such violence for grant of bail. Accordingly, this Court is inclined to grant anticipatory bail to the petitioner on condition that all the 3 accused persons taken together should deposit a total amount of ::14:: B.A.Nos.4537 & 3983 Of 2019 Rs.5,93,200/-, which is the loss assessed by the Assistant Executive Engineer either by cash deposit or by bank guarantee within a period of 2 months. In case the petitioners does not obey the said condition, then the investigating agency or the de facto complainant or the respondent-Balussery Block Panchayat will be at liberty to seek cancellation of the bail of the petitioners for violation of such condition. Accordingly, it is ordered that the petitioners will have to fully co-operate with the investigation process and immediately appear before the Investigating Officer for interrogation purposes. Accordingly, the following orders are passed: - (i) _The petitioners shall personally appear before the Investigating Officer in relation to Crime No.287/2019 of Balussery Police Station at 9:00 a.m. on any day on or before 5.10.2019 to subject themselves for interrogation purposes or within such other time that may be extended by the Investigating Officer concerned._ - _(ii) The petitioners will fully co-operate with the interrogation process. After completing the above interrogation process, in case the Investigating Officer arrests the petitioners, then they shall be released on bail on their separately executing bonds for Rs.40,000/- (Rupees Forty Thousand only) and on separately furnishing two solvent sureties for the like sum each to the satisfaction of the Investigating Officer concerned. Further it is also ordered that the grant of bail will be subject to following conditions:-_ - _(a) The petitioners shall appear before the Investigating Officer concerned on every 2[nd] and 4[th] Saturdays, at any time between_ ::15:: B.A.Nos.4537 & 3983 Of 2019 _09:00 a.m and 1:00 p.m, for a period of 3 months. Thereafter the petitioner shall report before the Investigating Officer as and when directed by the said Officer._ - _(b) The petitioners shall not involve in any criminal offences of similar nature._ - _(c) The petitioners shall fully co-operate with the investigation._ - _(d) The petitioners shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _(e) All the 3 petitioners should ensure that they should deposit a total amount of Rs.5,93,200/- either in cash deposit or by way of bank guarantee to the satisfaction of the jurisdictional Magistrate Court concerned within a period of 3 months from today._ - _(f) In case the petitioners do not comply with the abovesaid condition either in whole or in part, then the jurisdictional Magistrate court is hereby empowered to cancel the bail granted to the petitioners after hearing the petitioners and the respondent-investigating agency. It is also made clear that the Balussery Block Panchayat is also at liberty to make any such application for cancellation of bail._ - _(g) If the petitioner violates all or any of the bail conditions, then the jurisdictional court concerned will stand hereby authorised, to consider the plea for cancellation of bail, if required, in accordance with law._ With these observations and directions, the above Applications stand disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/-